Zeitoun v Nokia Corporation

REASONS FOR JUDGMENT 1 On 14 June 2006, Kenny J gave summary judgment for the present respondent, Nokia Corporation, against the present applicant, Abbas Zeitoun, and other interests pursuant to O 20 r 1 of the Federal Court Rules. Her Honour made declarations and injunctions, orders for delivery up, orders for discovery in aid of the calculation of damages and an order in the following terms: The respondents and each of them pay the applicant damages for infringement of the Nokia Trade Marks, to be assessed together with interest thereon, or, at the option of the applicant, the respondents and each of them account for the profits made by each of them by the said infringements and pay the applicant the amount found to be due on the taking of such account, together with interest thereon. Pursuant to that order, a Registrar of the court assessed the damages payable by the applicant at $35,000, and on 8 May 2007 he issued his certificate to that effect pursuant to O 38 r 2(1) of the Rules. 2 On 30 May 2007, the applicant filed an application for extension of time to file and serve a Notice of Appeal. That application referred to a judgment of 8 May 2007 as that from which it was desired to appeal. However, there was no judgment of the court on 8 May 2007. Had the applicant wished to challenge the assessment by the Registrar, he would have been required to apply for a review pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) and O 46 r 7B of the Rules. It was clear both from the way in which the applicant presented his case in court and from the terms of his draft Notice of Appeal that he desired only to appeal from the judgment of Kenny J given on 14 June 2006. He requested that his application be understood in that sense, and Mr Goldblatt, who appeared for the respondent, raised no objection to that course. 3 Mr Goldblatt also accepted that, subject to the extension of time which is sought in the present application, the applicant would have an appeal as of right from the judgment of Kenny J. 4 By O 52 r 15(1) of the Rules, a Notice of Appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced. If application is made within that 21-day period, that time may be extended by the court or a Judge. If application is made after the expiration of that period, under r 15(2) the court or Judge may give leave to file and serve a Notice of Appeal "for special reasons … at any time". The question which arises in the present case, therefore, is whether there are "special reasons" justifying the filing and service of a Notice of Appeal some 12 months after the pronouncement of the judgment in question, and, if there are such reasons, whether, in the exercise of my discretion, leave should be given. 5 As to the requirement of "special reasons" in r 15(2), in Jess v Scott (1986) 12 FCR 187, 195, the Full Court said: In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. 6 The question in the present case, then, is whether there is a ground which justifies a departure from the general rule that a Notice of Appeal should be filed and served within 21 days. This question relates to the operation of the general rule in the particular circumstances of the case, rather than to the merits, or the inherent prospects, of the appeal which is proposed. Stated differently, it might, in my view, be said that O 52 r 15(2) requires the existence of "special reasons" against a broad assumption that the party seeking to appeal is entitled to do so within 21 days and that he or she has, or at least may have, an appeal of some substance. 7 Mr Zeitoun, who represented himself both before Kenny J and on the present application, sought to justify his failure to appeal within time by reference to what he said was the circumstance that the proceedings before her Honour were against the company with which he was then associated, the original first respondent, Cellular Line Australia Pty Ltd. As he understood the situation, the proceedings before Kenny J were essentially against that company, rather than (or more so than) against himself. The applicant explained that, in about September 2006, that company went into liquidation, and that he (the applicant) now finds himself exposed to a judgment in damages which might otherwise have been enforced only against the company. 8 The applicant was a respondent, in his own name, in the proceedings before Kenny J. He participated in the hearing of the respondent's motion under O 20, representing both himself and the company. On their face, the orders made by her Honour applied to the applicant, and it was clear from her Honour's reasons that the pursuit of such orders was a significant part of the respondent's then case. The operation of her Honour's orders in relation to the applicant was direct, not merely derivative or contingent. Whether the company remained a viable, solvent, entity, or whether it went into liquidation, were circumstances which had no relevance to the operation of the orders as against the applicant. I do not consider that the facts that the company was also bound by the orders made by her Honour, and that it subsequently went into liquidation, amount to any kind of a reason - much less a special reason - why the applicant should have leave to appeal from a judgment against which he did not appeal within the 21-day period prescribed in the Rules. 9 Further, the question in the present case is not merely whether there are special reasons for the applicant to have leave to appeal outside the 21-day period prescribed by the Rules. Neither is it merely whether there are special reasons for such leave to be granted immediately after the liquidation of the company in September 2006. Rather, the question is whether leave should be granted some nine months after that event, and some 12 months after the original judgment of Kenny J. Relevant to that question is the following passage from the judgment of the Full Court in Jess v Scott (12 FCR at 195): It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. Had I recognised some merit in the applicant's point about the company originally being bound by the orders made by Kenny J, and about the company subsequently going into liquidation, I would nonetheless not have identified, in those circumstances, a "special reason" why the applicant should have leave to appeal at this very late stage. 10 Even when special reasons are established pursuant to O 52 r 15(2), the power to grant leave to appeal is discretionary: Howard v Australian Electoral Commission [2000] FCA 1767, par [7]. Had there been any substance in the applicant's submission that it was only the liquidation of the company which, at least as a matter of perception for him, exposed him to the operation of the orders made by Kenny J, that circumstance would still leave unexplained his failure to make the present application at, or at least within 21 days after, the effective date of that liquidation. Rather, the applicant has allowed matters to drift, as it were, for about a further nine months, during which time the respondent has been obliged to establish the quantum of its damages in the assessment proceedings before the Registrar. Mr Goldblatt submitted, and I accept, that the respondent would be prejudiced if the applicant were now permitted to prosecute an appeal against the judgment on the merits which was given some 12 months ago. Far from the applicant's case containing "something very persuasive indeed" (Jess v Scott 12 FCR at 195), I consider that the applicant's failure to appeal within time, and his subsequent failure to make the present application promptly, have created an environment in which the respondent has changed its position on the assumption that the judgment of 14 June 2006 would stand. 11 I am also satisfied that no injustice will be done if the applicant is denied leave to appeal. I take into account the apparent strength of the grounds of appeal upon which the applicant seeks to rely. His first ground is based upon a misapprehension that Kenny J gave summary judgment under s 31A of the Federal Court Act. The applicant's point is that that section applies only to proceedings commenced on or after 1 December 2005, and that this proceeding was commenced before that date. Kenny J's orders, however, were made under O 20 r 1 of the Rules of Court. There is, therefore, no substance in the first of the applicant's proposed grounds of appeal. 12 The second proposed ground of appeal is that the applicant had made it clear in the proceedings before Kenny J that he was not a director of the company which subsequently went into liquidation, and that he was only "a witness and an employee" of that company. The ground is expressed in a way that implies, rather than directly alleges, that Kenny J decided the matter upon the basis that the applicant was a director of the company. That is not so. Her Honour noted the applicant's evidence that he was not a director, and, as I read her reasons, her Honour did not base her judgment upon the existence of any specific relationship between the applicant and the company. Her Honour did, however, note that, at the hearing, the applicant had testified that the directors of the company were his brothers, that his brothers had no involvement with the company whatsoever, and that he was himself the manager of, and responsible for the running of, the company. Her Honour found that the applicant was "the guiding mind" of the company. In the circumstances, I consider that the applicant's proposed second ground of appeal proceeds from a misapprehension of the basis of her Honour's reasons, and would have no prospect of success. 13 The applicant's third proposed ground of appeal is difficult to understand, but, as it was explained to me in court, the applicant seeks to allege that Kenny J erred in permitting him to appear for the company without having filled in some special paperwork signed by a Justice of the Peace or similar. Whatever the applicant means by this rather obscure ground, manifestly it could not provide a basis to overturn so much of her Honour's orders as were binding on the applicant as an individual. As I noted above, the applicant appeared for himself in the proceedings before Kenny J. 14 The fourth proposed ground of appeal is that, "because of summary judgment", her Honour did not consider the applicant's allegations of "intimidation" by the respondent's solicitor and his staff. By way of exemplar, the applicant annexed to his proposed Notice of Appeal a facsimile message to him from those solicitors, dated 11 April 2006. There is no substance in the suggestion that that message constituted intimidation. It was a normal and unremarkable communication by one party to another in relation to litigation in which they were both involved. Moreover, the respondent's application was for summary judgment, which necessarily had to be determined according to the criteria set out in O 20 r 1(1) of the Rules. The proposed ground does not touch that subject, nor seek to impugn her Honour's decision by reference to the Rules. For these reasons, I consider that the ground has no prospect of success. 15 For the above reasons, I am persuaded neither that the present case involves any special reason why leave to appeal should be granted, nor that, even if there were a special reason, such leave should be granted in the exercise of the court's discretion. 16 The application will be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.